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Laws Concerning Captive Orcas

For decades, people have enjoyed marveling at the sight of the orca whale whilst it performed flips and dives and splashed them with water at marine parks around the world. The orca even serves as a mascot for the numerous SeaWorld parks. But the captivity of such massive creatures is not without its dangers. There have been multiple incidents over the years where killer whales have attacked and in some circumstances killed their trainer. Some suggest that these tragedies reflect the stresses that these creatures experience as a result of entertainment-based captivity.

The orca, also known as the killer whale, is a member of the dolphin family and is easily recognizable by its distinct black and white markings. Killer whales exist in all the oceans of the world in tight knit family groups known as pods. Each pod has its own distinct form of communicative sounds and behavior. Pods can typically travel over 100 miles in a single day following their food supplies in migration.

There are currently no laws prohibiting the housing of orca whales in captivity; rather laws that specifically allow for the capture of wild orcas for purposes of entertainment and scientific research. While the United States has not been issued a permit for the taking of a wild orca since 1989, other nations perform hunts in order to capture orcas for display. The United States relies instead on maintaining its captive whale population through breeding programs of whales already living in captivity.

While there is no law prohibiting the display of orcas, there are laws that govern those facilities that house them. The primary laws governing the facilities housing orca whales are the Animal Welfare Act and the Marine Mammal Protection Act. The Animal Welfare Act establishes standards and specifications that the facility must follow and adhere to in order to house an orca whale in captivity. It establishes the standard of care required when handling, housing, or transporting orca whales and other marine mammals. The Marine Mammal Protection Act is aimed at protecting the whales from being unlawfully captured from the wild by prohibiting the taking of marine mammals without specific authorization. The MMPA requires a permit for the taking of a marine mammal, like an orca, from the wild. Permits may be issued for reasons such as for scientific research, public display, or for enhancing the survival or recovery of specific stocks.

Along with the established federal laws, marine mammal facilities also have a system self-regulation. The two most prominent are The Association of Zoos and Aquariums (AZA) and The Alliance of Marine Mammal Parks and Aquariums (AMMPA). Facilities may be accredited if they meet the standards the organization has established. These standards are typically higher than the minimum requirements established under government law.

Even with these standards in place, the nation is still in controversy over the housing of orca whales in captivity. The standards are difficult to enforce as there are a small amount of inspectors to inspect all of the facilities in the nation. The 2010 death of SeaWorld trainer Dawn has sparked inquiries into the adequacy of the standards and investigations into the lives of captive orcas. Many see this tragedy as highlighting the need for greater enforcement of current standards or the passage of new laws aimed at protecting captive marine mammals.

Overview of Laws Concerning Orcas in CaptivityLauren Tierney (2010)

For decades, the public has been entertained by the antics of the killer whales in shows performed in marine parks. The killer whale show Believe at SeaWorld parks across the nation "blends new killer whale behaviors with elaborate set pieces, state-of-the-art multimedia, music and choreography" as well as accentuating "the close relationship SeaWorld trainers have with the killer whales." (See, http://www.seaworld.com/sitepage.aspx?PageID=533 ). But the captivity of such massive creatures is not without its dangers, both to the whales and the trainers.

While there is currently no law prohibiting the display of orcas, there are laws that govern those facilities that house them. The federal laws governing the facilities housing orca whales are the Animal Welfare Act and the Marine Mammal Protection Act. The Animal Welfare Act (AWA) was signed into law in 1966. It provides for the humane care, handling, treatment, and transportation of animals under certain situations. The Animal and Plant Inspection Service (APHIS) located in the United States Department of Agriculture is responsible for the enforcement of the Act. AWA sets up specific standards for facilities housing captive orca whales. The standards range from specific pool specifications, water quality, food quality and to other standards of care. Under the Act, a pool enclosure for an orca whale must be at least twelve feet deep and forty-eight feet across horizontally. These figures are based on the average length of an orca whale being twenty four feet.

Another important legislation for the handling of orca whales is the Marine Mammal Protection Act (MMPA). Enacted on October 21, 1972, the MMPA prohibits the "taking" of marine mammals from the wild without specific authorization. Under the MMPA, permits are issued to those who show an adequate cause to allow for the proper "taking" done in a humane manner. Permits are issued for reasons such as scientific research, public display, or enhancing the survival or recovery of species or stock. Despite public display being an exception to the unlawful "taking," the United States has not been issued a permit for public display since 1989. (See, http://ncseonline.org/nle/crsreports/marine/mar-21a.cfm ). The United States captive orca population has been maintained by successful captive breeding by the facilities. In fact, 50 percent of the world's 41 captive orcas were born in captivity.

Even with the governmental laws in place, the standards are difficult to enforce with the limited resources allotted to them. APHIS regulates the standards by surprise inspections on the facilities across the nation, but with only about one hundred inspectors, this is a daunting task. The approach of APHIS appears to be more of one encouraging compliance with the standards rather than penalizing or shutting down facilities that are in noncompliance. Critics argue that APHIS fails to take aggressive action when it is necessary, but instead wait for the facility to fix the reoccurring problems on their own initiative.

One example of this is the recent debate over the orca Lolita, housed in Florida's Seaquarium. While she is the oldest orca whale in captivity, estimated at around 42 years of age, she resides in one of the smallest pools desperately in need of renovation. From sky images, Lolita's tank has been measured at only 35 feet across from wall to the platform median, but the under the AWA, it is required to be 48 feet. Despite the efforts from animal activists by filing complaints, the Seaquarium has done nothing to fix her pool to come into compliance despite their statement in 1995 of their intentions to do so. Over three decades later and APHIS has refused to act despite Lolita's tank being in violation of the standards. She has spent about forty years of her life housed in the inadequate tank. Critics also allege that APHIS accepts the facility's own reported measurements of the tank size rather than conducting their own independent measurements.

Supporters of APHIS argue that the supervision has improved since APHIS acquired sole responsibility for overseeing the facilities. In a Congressional Research Service report to Congress, individuals speaking for the public display community claim that most of the problems relating to the care of marine mammals took place before the 1994 Amendment to the MMPA, which made APHIS solely responsible for oversight of captured or imported marine mammals. Thus, they feel care has improved in the past 15 years with this focused APHIS supervision. The report also noted that most of the issues reported were with private unregulated facilities, not the supervised public display community facilities.

The issue remains not of the whether facilities and organizations are following the law, but of the adequacy of the laws themselves. The minimum requirements of an orca enclosure are that it must be twice the length of the orca housed within. Is this an adequate standard for an animal that is capable of swimming over 100 miles in a single day? One whale expert claims that building a tank the size of Rhode Island would not be adequate to house a mammal capable of swimming one hundred miles a day (See Tilikum's Law). The depth of the enclosure must also be only that of half the length of the whale. Is this an adequate standard for a whale capable of diving hundreds of feet below the surface and typically spends most of its time under the surface of the water? It is difficult to file and win a case against a facility who is legally meeting all of the required standards.

Aside from the federal laws of the government, marine mammal facilities and aquariums rely on self-regulating organizations. Groups such as the Association of Zoos and Aquariums (AZA) and the Alliance of Marine Mammal Parks and Aquariums (AMMPA) have established a set of standards that are typically higher than those required by law. The AZA and AMMPA are involved with accrediting facilities that have shown they comply with the increased standards and they must continue to meet those standards to maintain accreditation. However, the accreditation is voluntary, and a facility has no legal obligation to bring itself in compliance with the higher standards.

Many of the controversies surrounding the captivity of orca whales and other marine mammals are centered on balancing the quality life of the whale, with the safety and economic welfare of the facility and its employees. The ocean is a complex environment to artificially recreate and can never really be duplicated in captivity.